New Zealand Human Rights Commission Submission to the CAT in relation to NZ’s 6th
periodic review
83.
The young men were alleged to have committed such offences as sexual violation by
rape and unlawful sexual connection, attempted rape, and assault with intent to
commit sexual violation. These offences are set out in the Crimes Act 1961 (“Crimes
Act”).
84.
Section 128 of the Crimes Act states that the offence of sexual violation is committed
if it can be proven that the alleged victim does not consent to the connection, and that
the alleged perpetrator does not have a reasonably held belief that he or she is
consenting.
85.
There is no statutory definition of consent. The courts have held that it must be full,
voluntary, fee and informed46 and that a person must understand their situation and be
capable of making up their mind when they agreed to the sexual acts.47 In addition
section 128 A states:48
(1) A person does not consent to sexual activity just because he or she does not
protest or offer physical resistance to the activity.
(3) A person does not consent to sexual activity if the activity occurs while he or she
is asleep or unconscious.
(4) A person does not consent to sexual activity if the activity occurs while he or she
is so affected by alcohol or some other drug that he or she cannot consent or
refuse to consent to the activity.
86.
Under section 134 of the Crimes Act, everyone who has a sexual connection with, or
does an indecent act on, a young person (under the age of 16 years) has committed an
offence and is liable to a term of imprisonment. There is no consent requirement
under section 134.
87.
While acknowledging that it is uncommon for Police to prosecute a young person
under section 134 as it is not considered to be in the public interest to do so, the IPCA
found that there were a number of aggravating factors in these cases that should have
prompted prosecution. In particular, the young women were between two and three
46
R v Isherwood CA182/04, 14 March 2005.
R v Adams CA70/05, 5 September 2005
48
Crimes Act 1962, s128A.
47
34